Documents for guardianship when buying an apartment: why and when are they needed?

Mortgage security often becomes an obstacle to obtaining a loan. The fact is that any transactions with real estate owned by minors are considered high-risk.

Not every bank will be able to issue a mortgage loan; the probability of cancellation of the sale and purchase is too high, and if the debt is not paid, such real estate cannot be sold. However, this does not mean that the situation is hopeless; a mortgage with the participation of minors is possible, but its important features should be taken into account.

Buying real estate with children's shares on a mortgage

Buying an apartment with a mortgage with children's shares is similar to a simple loan transaction. However, there are a number of significant nuances and documents that must be taken into account. In particular, such purchase and sale takes much longer. You need to be prepared for this if you plan to purchase an apartment with shares of minors. The need to involve guardianship authorities in this situation is spelled out in.

It is advisable to involve a lawyer in the transaction so that he can minimize the risks of cancellation of the transaction in the future.

What is the procedure for obtaining a housing loan when the sellers include minors:

1. Decide on the property you are purchasing.
2. The owner must collect a package of documents for the property in accordance with legal requirements. In order for the buyer to send a standard list of papers for consideration by the bank, the seller must obtain permission from the guardianship authorities to purchase an apartment and sell the existing living space. It turns out that he must already have a specific purchase option that allows him to obtain the consent of the guardianship.
3. Obtain the bank's permission to conduct the transaction.
4. Sign an agreement with the seller and give him the down payment. Complete the loan documents at the bank branch and submit all papers for registration of ownership.

Buying an apartment with a mortgage with guardianship , i.e. with shares of children, is done only through a notary. Be prepared to incur additional costs to pay for his services. The parties decide independently how they will be distributed.

When you buy an apartment with guardianship on a mortgage, you need to attach special importance to the permission of government agencies for the transaction. It must be completed, otherwise Rosreestr will return the documents for revision. Do not sign any paperwork until you personally verify that you have consent to sell.

What documents will be required for the guardianship authorities regarding the mortgage of the apartment being sold:

• parents' passports;
• child’s certificate or passport;
• extract from Rosreestr for the housing space being sold;
• certificate from the house register;
• statement.

Information. In accordance with the law, for minors under fourteen years of age (minors), property transactions can be carried out on their behalf only by their parents, adoptive parents or guardians.

It is imperative to attach documents confirming that there is no violation of the child’s property rights. If you gave him a share in another apartment, attach an extract from the register of rights. When purchasing a new property with the proceeds, a preliminary purchase agreement must be drawn up.

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Allocation of shares to children in mortgaged housing

What if the situation is reversed and you need to take out a mortgage with children's shares? The main problem is that the presence of minor collateral owners is very critical for the bank. The lender will most likely agree to such a deal only when there is no other choice. In other cases, he will try to avoid registering shares for children. Some credit institutions have a direct ban on such transactions.

When it is possible to pledge a child’s share and the consent of the guardianship authorities for a mortgage is required:

1. There is a legal requirement when paying part of the loan with funds from maternal capital or a targeted housing subsidy. In the second case, the inclusion of children among the owners is mandatory immediately upon execution of the transaction. You need to notify the lender about this in advance, otherwise you will be denied a mortgage already at the stage of signing the loan agreement. With maternity capital, things are a little simpler.
2. There is a requirement from the guardianship authorities to allocate shares to children due to the simultaneous sale of other housing.
3. Another case when it is necessary for the guardianship to approve a mortgage is collateral for existing housing on a loan. For example, you take an apartment under construction, and during the construction period you mortgage another property in which children are the owners.

When using maternity capital or state subsidies, the parent must draw up a notarial obligation for the guardianship authorities or the Pension Fund. In it, he undertakes to allocate shares to the children. When using a housing subsidy, guardianship requires that the condition be fulfilled immediately when completing the transaction; for maternal capital, you can wait for the loan to be fully repaid.

If you ignore these requirements, you will face serious troubles from supervisory government agencies. In this case, the client has the right to contact the bank and ask for permission to allocate a share on an existing housing loan, but it is not a fact that the answer will be positive.

By law, it is necessary to obtain the consent of the guardian for a mortgage before signing the agreement at the bank. When you have the document in your hands, immediately take it to your credit manager and wait for a response about the possibility of entering into a deal. The participation of a notary is required only if you are purchasing an apartment in shared ownership.

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Information. Minors from 14 to 18 years old enter into transactions with the written consent of their legal representatives - parents, guardians ().

What mortgage guardianship documents will be required from the borrower:

• parents' passports;
• certificate for the child or his passport (if available);
• application, including from a child over 14 years of age;
• a document confirming the approval of the mortgage application by the bank indicating the essential parameters of the loan;
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• draft purchase agreement;
• a notarial obligation to allocate shares to children for the mortgage guardianship authorities (only if the allocation of shares will be carried out after the mortgage has been paid off in full);
• title documents for the property being purchased and sold (if there is a counter transaction).

If at the same time you are selling real estate owned by children, you can immediately obtain permission from the guardianship authorities for the mortgage and for the sale of property.

Will I need permission from the guardianship authorities to purchase an apartment in a new building? Yes, if the loan agreement includes collateral for the constructed living space. Moreover, it is necessary to obtain the consent of the government agency at the stage of signing documents with the bank. That is, when the apartment is not actually built, but property rights are taken as collateral.

Adoption process

The adoption procedure involves going through the following stages:

• Complete a training program at a foster parent school. This stage is not obligatory for the child’s close relatives, as well as for his stepmother or stepfather.
• Obtaining permission to adopt.
• Registration as an adoptive parent.
• Selecting a child if the applicant does not yet know who exactly to adopt.
• Meeting with the child in the presence of guardianship and trusteeship authorities.
• Applying to the court for adoption.
• Registration of adoption with the civil registry office based on a court decision.
• Registration of a child with consular registration, if it is assumed that he will reside outside the territory of the Russian Federation.

Let's take a closer look at the stages of adoption.

Training at the school for foster parents

In accordance with the provisions of family law, persons wishing to adopt a child left without mother and father care undergo special training. For these purposes, a school for foster parents has been organized.

Training is required for anyone planning to adopt or take custody of a child for the first time. If the person is already a guardian or adoptive parent, retraining is not required.

Obtaining permission to adopt

The adoption approval process will take up to 10 business days. The period is calculated from the date of submission of the full package of documents to the guardianship and trusteeship authorities.

If a conclusion on the possibility of being a guardian or adoptive parent was received earlier and is still valid, re-obtaining is not required.

Registration as an adoptive parent

The procedure depends on the citizenship of the adoptive parent. Citizens of the Russian Federation are registered with the same guardianship and trusteeship authority in which the conclusion on the possibility of adopting a child was received. If they wish, they can contact another guardianship and trusteeship authority, as well as a regional or federal data bank on children left without parental care.

To register, you must provide a general passport and an adoption permit. The specialist will provide a questionnaire and application that you will need to fill out.

The following set of documents is prepared for foreign citizens:

• confirmation of registration at the Russian consulate;
• the obligation to provide an opportunity to examine the living conditions and upbringing of the child;
• conclusion on living conditions and the possibility of being an adoptive parent;
• the obligation of the supervisory authority to conduct inspections and provide reports on the life of the child in the adoptive family;
• document confirming completion of training as an adoptive parent;
• a document confirming the absence in state legislation of the possibility of concluding same-sex marriages (for persons who are not married).

All documents must be legalized and translated into Russian with notarization. The package of papers is submitted to the organization for the maintenance of orphans or to the guardianship and trusteeship authority.

Meeting with a child

Before adopting a child, a meeting will be arranged between the potential adoptive parent and the child. A representative of the guardianship and trusteeship authority must be present at the meeting. On the same day, all documents for the child will be provided for review.

Particular attention is paid to the medical report. The adoptive parent confirms the fact of familiarization with the medical report in writing. He also has the right to independently contact a medical institution for an independent examination. However, a representative of the guardianship authority must be present during the medical examination.

If you have found a common language with the child, you need to inform the guardianship authority operator about this. Then the questionnaire is removed from the general database and is no longer shown to other candidates for adoption.

Going to court

To adopt a child you will need to provide:

• statement of claim;
• general passport;
• marriage certificate (if the applicant is married);
• spouse's consent to adoption;
• medical report on health status according to form No. 164/u;
• certificate from the employer about the position held;
• document confirming the amount of income;
• document-basis for the right to use residential premises or the right of ownership to it;
• a document confirming registration as an adoptive parent;
• a document confirming completion of training at a foster parent school.

Foreign citizens will require additional documents. They need to be clarified in the office of the court to which the application is being submitted.

The judicial authority has the right to require the provision of additional documents. All of them are provided in duplicate.

The judge considers the application within two months from the date of filing. This happens behind closed doors. A representative of the guardianship and trusteeship authorities, the prosecutor and the child himself, if he is over 14 years old, are invited to the court hearing.

Further actions

In case of a positive decision of the court, the fact of adoption is registered in the registry office. The decision made is transferred to the civil registry office for registration and replacement of the child’s birth certificate. After registration, an adoption certificate is issued.

If it is assumed that the child will live outside the Russian Federation, it is necessary to register him with consular authorities. To do this, a corresponding application is drawn up, an adoption certificate is provided, as well as documents identifying the child and the adoptive parent.

Refinancing a mortgage with children's shares

If you already have a mortgage, and children have shares in the collateral, you have the right to refinance it. But here the same problems will arise as when obtaining a housing loan. What to do for borrowers who want to reduce their loan burden and transfer debt to another bank:

1. Obtain the consent of the creditor and guardianship to pledge real estate partially owned by children. If this condition is met, we can hope that the refinancing will be successful.
2. If the bank categorically refuses such collateral, consider the option of removing the encumbrance from the apartment. This can be done by offering the lender another property or by issuing a guarantee.

It will not be difficult to obtain permission from the guardianship authorities to refinance your mortgage, because they have already issued you a similar document once. For them, only a change of mortgagee will occur, so there is no need to worry about consent. What documents should be provided to the guardianship for mortgage refinancing:

• parents' passports;
• certificate for the child or his passport;
• the bank’s consent to refinance the existing mortgage;
• application from the borrower;
• documents for the apartment (cadastral passport, extract from the register of rights, foundation agreement, etc.).

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The most difficult thing is to refinance a mortgage for which maternity capital funds have already been allocated. The fact is that the notarial obligation to allocate shares to children must be fulfilled within six months after closing the loan (ground -).

However, the borrower will not be able to do this, because the apartment will again be pledged, only to another bank. Accordingly, the mortgage payer and the financial organization will face serious claims from the Pension Fund and inspection authorities. Such real estate cannot be considered a full-fledged collateral, because important legal obligations have not been fulfilled in relation to it.

If the client, before refinancing the mortgage, registers part of the apartment for the children, and the bank places an encumbrance on it, the risks will arise for the lender. If the client stops paying the debt, it will be difficult to sell the property. Although there are such cases in judicial practice, therefore it is impossible to take mortgage repayment lightly.

Which banks offer custodial mortgages?

As we have already said, not all credit institutions handle mortgages with children’s shares. First of all, you should contact large financial institutions. Which banks allocate shares to minors:

1. Sberbank makes decisions individually.
2. VTB can give consent, but subject to not exceeding a certain percentage of the property rights belonging to the child.
3. Uralsib is also ready to accept an apartment with a minor’s share as collateral if there is permission from the guardianship for the mortgage.
4. DOM.RF, formerly known as AHML. Here you can choose the optimal loan terms if you have guardianship requirements.

Even if you receive a positive response from the bank, there is no certainty that the guardianship will approve the purchase of an apartment with a mortgage.

It is quite difficult to get a mortgage for living space with the allocation of part of it for children; the risks are too great for the bank. Therefore, we recommend that you consider alternative solutions to the problem. In particular, it is possible to pledge other property where the child does not have ownership rights. Or try to delay the allocation of the share, as is done when using maternal capital. It is best to seek the help of a lawyer who is knowledgeable in housing issues, so as not to encounter claims from regulatory authorities later.

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Author:

Mortgage specialist Maria Yurievna Sokhan

Date of publication September 25, 2019 September 25, 2019

Can guardianship refuse?

A refusal may occur if:

• In the new house, the child's area will be smaller.
• The living conditions are worse, although the area is the same, or even larger.
• An apartment is purchased on credit, but with the simultaneous sale of existing housing, but there is no spare one.

The refusal of the guardianship authority is not unconditional. You can find new housing, taking into account the comments of the PPP employees in the previous application and apply for permission again.

There are cases when the refusal to issue permission to a transaction by the OPP is unlawful.
That is, there are no visible violations, all conditions are met, but the guardianship simply doesn’t like something, so the reason for the refusal is made up. In this case, the applicant can appeal their decision by going to court. But here you will have to involve a competent lawyer, otherwise the case will be lost. If you find yourself in a similar situation, you can get free legal advice from us. Facebook